www.jeremydebeer.ca

mazal tov to my friend and colleague ian kerr for co-editing and publishing LESSONS FROM THE IDENTITY TRAIL: ANONYMITY, PRIVACY AND IDENTITY IN A NETWORKED SOCIETY, which looks to be one of the most significant contributions to the world-wide privacy literature in recent memory. kerr and his illustrious co-editors valerie steeves and carole lucock have pulled off an equally impressive feat by convincing oxford university press to make both the hard copy and a digital version of the book available pursuant to a creative commons licence—the first time this prestigious publisher has done something like that. my only disappointment is that they couldn’t convince the publisher to push aside convention and print the entire volume using only lowercase characters. (anyone who knows ian will know what i'm talking about here.) anyways, this new book certainly tops my list of required reading for the summer, and i recommend you put it on yours too.

This week Wednesday I'll be moderating a panel of expert speakers visiting the University of Ottawa to talk about copyright culture and documentary films. Here's the description; hope to see you Wednesday.

Documentary films are profoundly important to any modern, liberal, democratic society. Films can be informative, entertaining, educational, insightful, critical, expressive and more all at once. They are significant economically, artistically, socially, politically and culturally.

Yet documentary filmmakers in Canada and around the world increasingly face obstacles to creating their art. Copyright law, policy and practice can be one such obstacle, though paradoxically copyright protection can also be critically important to filmmakers. The concept of fair dealing or fair use of copyright-protected works represents a way out of this paradox. If properly implemented in practice, the fair dealing doctrine can facilitate access to the raw materials creators need to make documentary films while fulfilling their own reasonable requirements for copyright protection.

On February 18, 2009 the Torys Technology Law Speakers Series presents a panel of internationally-renowned experts from Canada and the United States, discussing the practical impact of copyright culture on documentary films, and the creation of best copyright practices for fair dealing in the documentary film community. Join the conversation from 11:30 - 13:00 in room 147B of the University of Ottawa's Faculty of Law.

I’ve been researching and writing about the provinces’ role in debates about copyright reform for a few years already, but only recently have provincial governments begun to think strategically about this topic.

A posting on FYI music drew my attention to this study for the music industry in Ontario, which is actually part of a package of recent reports that address book and magazine publishing in the Province too. Read the reports and you’ll see there are some really good ideas in these reports for supporting creators and investors in the creative industries.

Though some of the copyright-related conclusions are based on flimsy evidence, what got my attention was the fact that the Provincial Government is interested in copyright at all. For example, the music industry study includes among its recommendations:

that provincial ministries engage the Ontario music industry and fellow creative industry representatives in a high level, inter-ministerial forum that would engender an open dialogue around key copyright issues.

Today the Supreme Court of Canada released its long-awaited decision in Apotex Inc. v. Sanofi-Synthelabo Canada Inc., 2008 SCC 61, which upheld Sanofi's "selection patent" over the anti-coagulant marketed as Plavix. A selection patent is basically a patent for a particular part of an already-patented invention. They're widely used in the chemical and pharmaceutical industries, and have huge importance in ongoing battles between generic and research-based pharmaceutical companies.

Should amateur podcasters, peer-producers, social networks, video-sharing hubs and "all other sites" pay copyright royalties for the music they communicate? The Copyright Board says no. Or at least not yet.

In a long-awaited decision released today the Copyright Board of Canada declined to set a tariff of royalties for a miscellany of web sites that transmit music in one way or another. Among those exempted are Facebook, MySpace and YouTube, as well as hundreds of thousands of other businesses whose sites incorporate some music. Amateur podcasters are also off the hook for payment of this tariff.

How can developing countries increase their influence in international negotiations around intellectual property? That's the question addressed by Professor Peter Yu in one of the chapters of a forthcoming book that I am editing, Implementing WIPO's Development Agenda. I mention this now because Professor Yu's chapter has just been published by the Centre for International Governance Innovation as a working paper. It is availble for download right here.

The release of the working paper coincides with the meetings of the WIPO General Assemblies that wrapped up in Geneva last night. The adoption of recommendations for a Development Agenda in October 2007 was a tremendous accomplishment, but so far practical changes have been slow to result. Concrete strategies are needed to ensure successful implementation of the recommendations over the coming months and years. 

Yu argues that developing countries need to take advantage of the current momentum, coordinate better with other countries and nongovernmental organizations, and more actively share with others their experience, knowledge, and best practices. He begins by explaining how building intellectual property coalitions for development (he uses the term, IPC4D) can help less developed countries strengthen their collective bargaining position, influence negotiation outcomes, and promote effective and democratic decision making in the international intellectual property regime. The paper then discusses four coordination strategies that can be used to develop these coalitions. It concludes with a discussion of the various challenges confronting the creation and maintenance of these coalitions.

The working paper was prepared for the E.D.G.E. Network on the Emerging Dynamic Global Economies Network, hosted by the University of Ottawa and funded in part by the International Development Research Centre. The complete book will be co-published  and released later this year by Wilfred Laurier University Press, CIGI and the IDRC.

If you've got something to say about the new copyright Bill, drop a comment right now on the CBC Radio 3 blog or email your thoughts to . I'll chat live with host Grant Lawrence later this hour (3-4 EST, 12-1 PST) about what the Bill practically means for you, whether you're an artist, entrepreneur, teacher, consumer or anyone else for that matter. Tune into the webcast or listen on Sirius Satellite 94.

Tomorrow from 12:00 until 1:00 EST I'll be participating in a Globe and Mail forum to answer questions about the new copyright Bill. I'll cut through the legalese to figure out and explain objectively what the proposed law would mean in practice for creators, businesses, consumers, educators, librarians or other Canadians. Send your questions to the Globe  using the link above and we'll see if we can shed some light on your issue.

Update: I answered as many of the 85 questions as I possibly could in an hour. Check out the Globe's site to see some of my answers. Common themes were the practicality of the time and format shifting provisions, the nuances of statutory damages, the role of ISPs as well as border officials in enforcing copyright and the consequences of provisions concerning technological protection measures. I tried to be as objective and honest as possible in my responses. I hope you find the Q&A useful.

Barry Sookman and I appeared on the Business News Network last week to debate the new copyright Bill C-61. You can watch the entire segment on BNN's site, at least as long as it stays posted there. (I tried to archive a copy on my own site, and to keep one for my own personal records, but it seems I am locked out by a technological measure. BTW, if anyone knows how to circumvent that, now would be the time to tell me, before the Bill becomes law.) Obviously, it was very difficult for either of us to say much of substance in a 10-minute back-and-forth interview, but all in all I thought it was a good start to the conversation about the Bill. The more people talk about its details, the more I'm sure Canadians will see why the Bill is not nearly as balanced as some claim it to be.

While in Hong Kong last week for a workshop on implementing the WIPO Development Agenda, I also took part in a panel discussion on copyright reform. One of the most interesting things I heard came from Hong Kong copyright expert Kevin Pun, who spoke about an educational amendment just introduced into HK copyright law last summer. I immediately thought to myself whether a similar reform might work in Canada. My answer: I doubt it. Here's why.

For those of you following international IP law and policy, you'll know that last year WIPO's General Assembly endorsed 45 recommendations relating to a "Development Agenda." That itself was a significant and exciting achievement. But the litmus test for success is how these recommendations are implemented in practice. As the EDGE Network's research theme leader in technology and intellectual property, I've been steering a multidisciplinary and multinational project working on practical strategies to implement the DA.

In 1788 James Madison wrote in Federalist Paper #43, about the 8th clause of Section 8 of Article 1 of the United States’ Constitution: “The utility of this power will scarcely be questioned.” One could say the same thing about sections 91(22) and 91(23) of Canada’s Constitution, which give Parliament the power to legislate in respect of patents and copyrights respectively. In a 141 years of constitutional cases, Canada's highest court has never considered the scope of or rationale for those powers.

Last weekend, however, at Peter Yu’s annual IP Scholars’ Roundtable, I questioned the utility of those powers. Not in terms of the wisdom of granting IP rights in order to promote progress, but the utility of allocating power over IP law and policy making to Congress and Parliament instead of state/provincial courts and legislators.

This is a topic I’ve been working on for a few years already. I’ve published 2 peer-reviewed articles on copyright and Canadian federalism (one on levies and the other on paracopyrights, more commonly called anti-circumvention provisions). But now I’m working on a more general federalism-focussed theory of IP.

In general, I am investigating the utility of centralizing, as opposed to decentralizing, IP law and policy making. That is to say, my general investigation is not of the doctrinal nuances of any particular jurisdiction but of the conceptual underpinnings of IP law and policy making applicable in any or all federal or quasi-federal political systems. Eventually, I’m hoping to create an analytical tool that can transcend national political systems to explain IP law and policy making choices at both sub-national and international federations.

Yesterday the Ottawa Citizen ran a story about an Ottawa band, My Dad vs Yours, whose instrumental music was used without permission by Fox in its Superbowl pre-game telecast. Apparently, Fox didn't ask the band whether they could use its music as background for Terry Bradshaw's interview with Tom Brady. The Citizen's reporter asked me for my comments on the case, some of which are included in the article.

I'm not sure if I was misquoted or if I misspoke (probably the latter, to be honest), but thought I should clarify what I meant to say. It isn't entirely true that broadcasters in the US don't have to get songwriters' permission to broadcast musical works. The matter is a bit more complicated than that. Certainly, US broadcasters such as Fox wouldn't have had to worry about the rights of performers or record labels because, in the US, performance royalties are only payable for digital transmissions. Whether Fox should have contacted the band for permission to use the underlying music depends. In particular, it isn't clear whether this Ottawa band, or its music publisher if it has one, is affiliated with a performing rights collective like ASCAP, BMI or SESAC. If it is, then Fox almost certainly has a blanket licence to use any music administered by the collective as long as it pays the prescribed royalties. Now, that still wouldn't allow Fox to synch the music with video and release the recording, but as far as I could tell, this was a live broadcast only.

Anyways, it will be interesting to see how Fox responds to the band's copyright claim. I'll keep you posted if/when further details about a possible lawsuit emerge. 

Why were Canadians told that the Government would "improve the protection of cultural and intellectual property rights in Canada, including copyright reform." Well, in part it is because improved copyright protection could be good policy for Canada. However, politics are as influential as policy when it comes to making new copyright laws. Trade and foreign relations are particularly important considerations.

According to Industry Minister Prentice, "we've been criticised internationally for being lax in terms of our copyright law." A closer look at Canada's status in the international community, however, reveals a real opportunity for Canada to show global leadership on the copyright issue. By accepting my 5th and final recommendation and resolving to demonstrate leadership with copyright reforms in the new year, the Government can act on its stated commitment to "strengthening Canada's sovereignty and place in the world."

Economic prosperity is an important priority for the current Government of Canada. Copyright plays an important role in our economy, but its influence is often misunderstood. Overreaching copyright laws can stifle competition, reduce productivity and limit growth. To avoid these results, the Conservatives must resist pressure from foreign governments and special interest groups to enact laws that encourage the lock-up of digital content. Paracopyright provisions that protect digital rights management systems, or anti-circumvention laws as they're commonly called, can be bad for Canadian businesses. I recommend that the Government resolve to steer clear of them for a prosperous new year.

The Conservative Government of Canada's Policy Declaration of 2005 promised unequivocally: "A Conservative Government will eliminate the levy on blank recording materials." As of January 1, 2008 this promise remains online, now posted under a 2008 banner with Prime Minister Stephen Harper's name and image standing by it. Will the Conservatives keep this promise when they table new copyright legislation this year? They should. Keeping promises is my #3 recommended copyright resolution for the new year.

The second copyright resolution I'm recommending the Government of Canada adopt for the new year is to lose some weight from the Copyright Act. Or at least, the Government ought to avoid putting on too many more pounds when it introduces a copyright reform bill in the near future. The Act is already too fat and too complex. While I fully realize that copyright is a complicated subject, the Government should do its best to simplify the law. Here's why, and as importantly, how.

Here's my #1 recommended resolution for the Government of Canada when it comes to copyright lawmaking in the new year: listen more. During House of Commons' holiday hiatus the Government has a chance to reevaluate any legislation it might introduce in the new year. There are many things that could be cut or tweaked, and even more that could probably be added. How's the Government supposed to figure out the right policy move for creators, consumers and the Canadian public in such a short time frame?  Well, it won't be easy, but it is possible.

There have been some tremendous turns of events in the world of Canadian copyright during  the past couple of weeks. 10 days ago we were expecting the introduction of imbalanced copyright legislation rumoured as drafted to appease the American ambassador. Since I was in Puerto Rico teaching my Digital Music course, there was little I could do at that point. So I went offline and onto the beach to unwind for a few days. When I reconnected on Tuesday, I thought for sure the pina coladas had clouded my vision, but nope, it was true: the Conservatives had a change of heart and decided not to table the controversial bill. The next night reforms were apparently on again, but by last Thursday morning it was clear we weren't going to see legislation introduced until the new year. My colleague Michael Geist's facebook group is the best source for analysis of what happened and why.

Yesterday the Supreme Court of Canada denied a group of organic farmers' application for leave to appeal in the case of Hoffman v. Monsanto. I was both surprised and disappointed by this decision. I've spent considerable time during the past several years researching, writing and consulting on this case. Now that this chapter of the legal dispute over liability for genetically modified crop drift is over, I'll surely take the time to prepare a final comment on the case and its implications. Meanwhile, however, I thought I'd offer some initial thoughts about the question: what happened? In a separate posting soon to come, I'll consider the question: what next?

Mark Goldberg's blog, Telecom Trends, today featured a guest post by Queen's University student Alex Goldberg (relation?) about net neutrality on university campuses. The gist of the post is that some students are getting slow connections because other students are consuming bandwidth by downloading music and movies, and because capacity is limited, it's legit for the school to prioritize some types of content over others. Well I don't know whether Queen's actually does this or not, but I just found out that my school, the University of Ottawa, already shapes my traffic.

Interestingly, I learned about this fact earlier in the week while preparing for a course I teach about Digital Music. The course covers, among other things, the economic, legal, cultural and technological issues surrounding p2p downloading. Part of the pedagogy is to demonstrate how p2p works, in order to facilitate a more informed discussion of the topic. (Don't worry legal eagles: we just browse, we don't download. We're not breaking any laws and, more importantly, not consuming more than our fair share of capacity.) Turns out, though, that the in-class demo would've fallen flat. In my pre-class prep, I tried testing LimeWire, only to learn that I couldn't get much of a connection. It was simply too slow, so we couldn't do our little experiment effectively.

Some readers might realize that this seems to be Mr. Goldberg's point. That the solution to stave off frustration for students researching and writing term papers is to deprioritize p2p traffic. I guess my response is that it isn't easy to make these kinds of calls, and I certainly don't want my university network administrator, let alone a software program, making the tough decisions about what content I get fast access to and what I've got to wait for.

I wanted to use the p2p connection for pedagogical purposes. And while I admit I might be part of a freakish minority using p2p in this way, I can point to other problems caused by traffic shaping at universities. This week I'm teleconferencing the Digital Music course to students at the University of Puerto Rico. All of the video being piped back and forth between our schools is being recorded. These recordings will be archived and made available to students as torrents. Do my classes deserve to be deprioritized? More broadly, despite the fact that p2p is presently used mostly for sharing copyright-protected movies and music (which I don't condone, by the way), there are also many examples of legit p2p practices. And who knows how these technologies could potentially be used in the future? That is, only if they're not discriminated against.

I checked with my network people and was told that the distinctions made by the automated shaping software aren't exactly subtle, and the program isn't sophisticated enough to route me or my students around the roadblocks. Shaping traffic depends on sometimes inaccurate presumptions about the content being transmitted as well as subjective (or sometimes financially motivated) judgments about the relative importance of that content. While Mr. Goldberg suggests that prioritizing some types of content (i.e. academic materials, however that is defined) is especially appropriate on a university campus, I'd argue the exact opposite. Universities, even more than any other service providers, ought to be completely content agnostic. Campus networks, like classrooms, should be structured to maximize openness and encourage experimentation with new modes of sharing knowledge.

For now, though my network isn't neutral, at least it is comforting to know the network admins won't be weighing in on my tenure application.

UPDATE: There's a Globe story today highlighting how "Legit bittorrent users face traffic jam." The article points out that bittorrent is not only used for copyright infringement: "The service is also used by open-source software developers, university professors distributing class lectures and independent filmmakers looking for an audience for their films." Moreover, the article referenced a documentary called "On Piracy," which was made by a University of Ottawa student and is distributed via bittorrent. I'd like to consider recommending the film to my Digital Music students, but sadly, it is taking forever for me to download this from work. And even if I do assign the film, my students' homework is destined to be deprioritized.

Trent Reznor, the man behind Nine Inch Nails, has finally said "fuck it" and launched a site where fans can mashup and remix NIN tracks. Reznor had faced resistance from UMG, owner of his former label, Interscope, which controls the masters being remixed. UMG thought it might not look so good if it permitted users to upload mashups that may contain other copyright-protected content, while at the same time it pursues a massive copyright claim against News Corp for doing the same thing with MySpace. The label was going to permit the use of its masters for remixing, but wanted Reznor to assume liability for hosting the peer-produced content.

This isn't the first time Reznor has had a run-in with his label over copyright, marketing and new media strategies. Earlier this year he lambasted his label over the "absurd" price of his CD, and then called on fans to steal his music rather than buy it.

Nor is this the first time artists have embraced their fans creative impulses. The Barenaked Ladies did something similar last year. One slight difference is that BNL cleverly sought to monetize fans' desire to mashup their music by selling downloads of the individual tracks underlying certain songs. BNL have also built brand loyalty by incorporating social media "celebrities" into their videos, and distributing that where people want to see it: on sites like YouTube (and everywhere else they can, for that matter).

All of this goes to show just how out of touch (thanks for the link Trent) some of the execs at major labels are, not only with digital technology and music fans, but also with artists. At least we've got people like Reznor, BNL and others in the CMCC working toward a more positive and prosperous digital music environment. Let's hope they continue to have an impact.

Sources from CNN to TMZ are reporting that the Red Hot Chili Peppers have sued Showtime Networks for creating a television series called Californication in which one of the characters is Dani California. Californication was, of course, one of the Chili's best-selling albums, and Dani California was recently the title of a hit track for the band and is the name a recurring character in several Chili's songs. So they've alleged in this statement of claim that defendants are liable for unfair competition, unjust enrichment and trade-mark dilution.

To me, the most interesting thing about this lawsuit is the backstory. In 2006, Flea, the Chili's bad-boy bass player, wrote an impassioned "Fleamail" to fans begging them not to download leaked copies of the then forthcoming Stadium Arcadium album:

..

that's not very nice
if you down load it now off one of these file sharing sites
you will be getting a pale imitation of the record
it will be of the poor sound quality of the technique they used to
get it on there
and that will break my heart rt

...

yes, it is stealing from us, and that is lame
everyone has to live with their own conscience on that one
let it be your guide

... 

Well, a few consciences might have been cleansed upon learning of striking similarities between the Chili's new hit song (Dani California) and Tom Petty's track, Mary Jane's Last Dance. At the time SPIN.com quoted a Delaware DJ who said: "The chord progression, the melody, the tempo, the key, the lyrical theme… they're identical." Don't take their word for it: listen yourself. Ultimately, Petty failed to be (petty, that is) and decided to grant the Chilis reprieve for their apparent lack of originality.

But wait, there's more. Have you ever seen the video for Dani California? In it, the Chilis invoke the image of many of the 20th century's greatest rock stars. Really, have a look. Now, I actually think that is a brilliant video. The Chilis are really paying homage to the artists who influenced them and everyone else making music these days. In a highly entertaining manner. And they are and should be allowed to do this.

But therein lies the hypocrisy of their lawsuit against Showtime. How can they blame someone else for recycling pieces of our cultural fabric when that's precisely what they've done so well?

Wikipedia defines the term Californication as "a portmanteau of California and fornication" It cites a Time magazine article from 1972 on the Great Wild Californicated West, a story about the haphazard, mindless development that gobbled up most of Southern California. My friend and colleague Ian Kerr made a somewhat similar use of the term in an inspiring article about the Californication of Commerce, a process by which the automation of e-commerce jeopardizes privacy and diminishes the ability of consumers to make informed choices.

With this lawsuit it seems to me that the Chilis are seeking the haphazard mindless development of intellectual property principles beyond their traditional bounds. They're jeopardizing the balance between free culture and unfair competition. In short, they're trying to Californicate the law.

The Supreme Court teased us earlier this week with an announcement that it would release its decision about the application for leave to appeal in the case of Hoffman v. Monsanto. Apparently, though, there's been a change of heart. The Court said today that, in fact, it isn't quite ready to reach a decision on the application yet. So for now we still don't know whether or not the Court will take the case, or even when it make that decision.

Earlier this month the Copyright Board released the latest decision in the ongoing saga of SOCAN's "Tariff 22." For those unfamiliar with its history, this is the same tariff that was originally proposed to apply to internet service providers in 1996. When the Supreme Court of Canada held that neutral network providers aren't liable for communications of copyright-protected content, SOCAN restructured the tariff to focus on entities that sell downloads, stream songs, podcast or otherwise use music on their websites. The Board held that online music services must pay SOCAN 3.4% of the purchase price for a digital download, 6.3% of fees for subscription-based download services and 7.6% of fees for subscription-based streaming services.

Michael Geist and Howard Knopf have provided comments on the case. So too have other notables including copyright guru Bill Patry and Eliot Van Buskirk of Wired's Listening Post. Those folks have already addressed some of the most noteworthy aspects of the Board's decision, so I'll focus on only a few points in the following remarks.

Late last week I was asked by the media to comment on a copyright dispute between the Library and Archives Canada and CARFAC and RAAV, organizations that represent the interests of visual artists. When LAC tried to get artists to sign this standard form licence agreement granting the Government rights to use artworks in various ways, CARFAC and RAAV came out with this public release urging artists not to capitulate. The story was pretty much killed when LAC backed down, so my interview never aired, though the Globe did run a small piece on the issue.

Because I still think the story is interesting, I wanted to provide a few remarks about it before it fades away. First, as someone who has worked with CARFAC Ontario in the past to teach visual artists about their rights, and a writer/creator myself, I'm very sympathetic to the need to defend artists against exploitation. But as a scholar and educator, I also understand the difficult position LAC finds itself in when wanting to use copyright-protected works for sometimes innocuous purposes. So here's my view on this dispute ...

A lot of people are talking about the $220,000 award given to the RIAA by a Minnesota jury this week. I was asked for my comments by about a half-dozen CBC radio stations from across the country yesterday. In a series of interviews from St. John to Victoria I tried to convey a couple of basic points.

Just recently I discovered the latest in a series of Canadian cases involving copyright and freedom of expression. This past summer, in Corporation Sun Media c. Syndicat canadien de la fonction publique, 2007 QCCS 2943, a Québec court held that copyright apparently always trumps expression. For some reason, Canadian courts can't seem to get it: the Charter, not the Copyright Act, is the supreme law of the land.

This fall the Supreme Court of Canada will hear the case of Transportaction Lease Systems v. Yeung. The issue for the Court involves the vicarious liability of property owners. Section 86 of B.C.'s Motor Vehicle Act makes a vehicle owner vicariously liable for the negligence of persons driving the vehicle with the owner's consent. According to the B.C. Court of Appeal, that includes a lessor.

I'm very interested in that case because I suggest that vicarious ownership obligations can extend to intellectual property owners as well. In an article called "Biotrespass," which was just published in the Bulletin of Science, Technology and Society, I argue that a patent licensor ought to be liable for the actions of its licensees. A landlord can be liable for the acts of her tenant in a real property context, and a lessor can be liable for acts of lessee in a personal property context. Though liability in the Yeung case turned on statutory interpretation,  in principle there's no reason to treat intellectual property owners any differently than real or personal property owners. Because real, personal and intellectual property rights provide owners with control over the property, often bolstered by contracts, the threat of liability creates an incentive to exercise that control so as to minimize the risk of harm to others.

It happens that the Supreme Court has a chance consider my argument about intellectual property ownership obligations in the near future. In the case of Hoffman v. Monsanto a group of organic farmers are seeking leave to appeal from judgments of the Saskatchewan Court of Appeal and Court of Queen's Bench denying their application for certification as a class action. They're alleging that Monsanto and Bayer Crop Science are liable for harms caused by genetically modified crops that stray from licensed farmers' fields. Though the claims are complex, the plaintiffs are relying heavily on the notion of intellectual property ownership obligations.

We'll soon see if the Supreme Court chooses to recognize that real, personal and intellectual property rights come with responsibilities, and whether vicarious liability is the appropriate legal tool for implementing this principle, or if there are other grounds on which to impose liability. When my tort and property classes get underway this week, these will be cases to watch.

The Copyright Board has just decided it can proceed to consider a proposed tariff on digital audio recorders such a Apple's iPod. Deja vu? Indeed. The last time the Board dealt with this issue, it had approved a tariff on the memory embedded in these types of devices. The Federal Court of Appeal granted an application for judicial review of this decision, finding that the Board lacked the statutory authority to do what it did. The Court said, "A digital audio recorder is not a medium;" it can't be subject to a levy.

This time, the Board dove into a clever array of analytical acrobatics to point out that the issue is different. Last time, according to the Board, it was all about the memory in the recorder. Now, it is about the recorder itself. In 2004, the Court had said, "it is the device that is the defining element of the levy and not the memory incorporated therein," but the Board didn't seem to accept that categorization of its previous decision. And what about the Court's apparently unambiguous remark that "A digital audio recorder is not a medium"? Well, the Board found that this was said as obiter dicta. Likewise with the Court's statement that "there is no authority for certifying a levy on such devices or the memory embedded therein." Since, in the Board's view, the Court didn't have to make that finding, it isn't binding.

Though objectors suggested the Board should at least find the Court's comments persuasive, if not determinative, the Board disagreed. The Board's statement was the exact opposite of the Court's: "a digital audio recorder is an 'audio recording medium'" as long as it is ordinarily used to make private copies of music (my emphasis). While the Court cautioned that "it is for Parliament to decide whether digital audio recorders such as MP3 players are to be brought within the class of items that can be levied," the Board employed a purposive interpretation of the Act to conclude otherwise. Incidentally, the Board also rejected objectors' arguments about estoppel and other equitable principles.

So what are the implications of all this?

Today's Supreme Court decision in Dell Computer Corp. v. Union des consommateurs is a major blow to consumers who engage in e-commerce in Canada.

At stake was consumers' right to access the justice system through class actions rather than mandatory arbitration to resolve disputes. Dell imposed arbitration as a "take it or leave it" term in the contractual fine print linked from the bottom of its website, and though nobody ever reads those, the Supreme Court held the term was enforceable.

In an interview on CBC television this morning (quoted online) I said that arbitration can be a useful dispute resolution tool, but only if it is truly consensual. Class actions are generally the best way to modify business behaviour, so it is sad that the right to bring them has been cut off in many cases.

Broadly, I think there will be 2 sorts of fallout from this decision. First, businesses will put these "class action stopper" clauses in contracts of adhesion more frequently. The practice won't be limited to e-commerce, and will become boilerplate in all kinds of consumer contracts. Second, that will likely lead provincial policy-makers to take action. BC, Ontario and Québec have already done so, and it only remains to be seen which will be the last province to wake up to this issue.

Despite the disappointing result of this case, mention must be made of the fantastic work by CIPPIC and my colleague Mistrale Goudreau on the SCC intervention, and in tackling this problem generally. I'm sure this work will pay off when each province puts adequate consumer protection in place.

Today I asked my assistant to have a document printed and bound for me. I didn't want to reread the entire electronic version of the UK Commission on Intellectual Property Rights' 191-page report on Integrating Intellectual Property Rights and Development Policy. It is a fantastic report, which I highly recommend you read. But that's not my point here. Here, I'm sad to report that my printing request was refused by the person in charge of copyright clearances at my university's reprography department!

I was told that printing this document was not allowed under copyright law.  Of particular relevance, apparently, was the notice at the end of the document saying: "For a hard copy of the report or further information please contact the Commission Secretariat." Note that I only wanted this document printed, not sold, not distributed, not photocopied, just printed. I was so shocked by the refusal from the department's supposed copyright expert that I didn't know quite how to respond. At first, all I could say was, "wow."

My request is being reconsidered by the powers that be, though the prospect that I'll get a printed document anytime soon isn't good. My attempted explanation of copyright law seems to have fallen on deaf ears. But frankly, now I'm more worried about what else is going on in that department than I am about my document. I've asked for a meeting to discuss our university's copyright practices more generally. We'll see whether that goes anywhere.

Viacom’s billion-dollar lawsuit against YouTube has justifiably generated a lot of buzz. The likes of Lessig, Boyle, Wu and many others have weighed in on YouTube’s potential liabilities and the consequences of this litigation for the networked information economy. This weekend Peter Yu is hosting an intriguing conference called, ‘What Ifs and Other Cyberlaw and Intellectual Property Counterfactuals,’ and I’m sure people will be talking about this case there too. Though another commitment prevents me from attending Yu’s conference in person, I’ve decided to pose my own ‘what if’ here. What if YouTube were sued in Canada? 

Today the Copyright Board of Canada approved a tariff on services offering streamed or downloadable music to end users in Canada. Here is the tariff and the reasons for the Board's decision. For permanent downloads, "online music services" pay 7.9% of the track's retail price, but at least 4.1 or 5.3 cents per track depending on whether it is sold as a single or bundled with an album. Subscription services offering streams and limited downloads pay based on a formula that reflects a percentage of monthly revenues and the number of tracks licensed. That is for reproduction rights in respect of musical works. Royalties are payable to "CMRRA-SODRAC inc.", a joint venture between the collectives representing most music publishers in Canada. For what it's worth, here's my take.